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Re: Sony Computer Entertainment America LLC v. Hotz

March 1, 2011


The opinion of the court was delivered by: Magistrate Judge Joseph C. Spero

Courtroom A, 15th Floor 450 Golden Gate Avenue San Francisco, CA 94102

Dear Judge Spero:

Plaintiff Sony Computer Entertainment America LLC ("SCEA") has reached agreement with Defendant George Hotz on the scope of third party subpoenas that may be served by SCEA to seek jurisdictional discovery. SCEA respectfully requests that the Court enter an Order adopting the parties' agreement.

A.Background on SCEA's Third Party Subpoenas For Jurisdictional Discovery

SCEA seeks to serve subpoenas on certain third parties to obtain additional evidence of Mr. Hotz's contacts in California and the harm to SCEA here resulting from Mr. Hotz's unlawful conduct. SCEA needs this jurisdictional discovery to oppose Mr. Hotz's Motion to Dismiss for Lack of Personal Jurisdiction ("Motion to Dismiss") currently set for hearing on April 8, 2011. SCEA's opposition is currently due on March 18, 2011.*fn1

As ordered by this Court, on February 14, 2011, counsel for the parties met and conferred to resolve their dispute as to the scope of the subpoenas to be served on the third party Internet Service Providers ("ISPs"), including Bluehost, Twitter, Google, YouTube, Softlayer and PayPal. As a result of this meet and confer, the parties narrowed the scope of several of the subpoenas and agreed to provide for protection of confidential information obtained through some of the subpoenas through an Attorneys Eyes Only designation. SCEA also agreed not to pursue, as part of its jurisdictional discovery, several of the third party subpoenas originally included in its Motion for Expedited Discovery. (Docket No. 62). Accordingly, the parties agreed that subject to this Court's entry of an order, SCEA may proceed to serve its subpoenas on Bluehost, Twitter, Google, YouTube, and Softlayer for purposes of jurisdictional discovery.*fn2

The parties' agreement, along with the revised language and scope of the relevant subpoenas, was memorialized in the Joint Letter submitted to this Court on February 18, 2011. (Docket No. 85 at 10). For the Court's convenience, the proposed subpoenas are attached hereto as Exhibits A-E.

Because the information sought by SCEA through these agreed upon subpoenas is necessary to its response to the Motion to Dismiss and is narrowly tailored to seek jurisdictional discovery only, SCEA respectfully requests that the Court enter an order allowing SCEA to proceed to serve the subpoenas as set forth in the attached Exhibits A-E. SCEA further requests that the Court order third parties to comply with this discovery by no later than March 16, 2011, so that SCEA will have responsive discovery in advance of its deadline to oppose the Motion to Dismiss.

B. The Electronic Frontier Foundation Amicus Curiae Letter Is Improper And Moot

Disregarding the fact that the parties already reached agreement on this subject, on February 24, 2011, the Electronic Frontier Foundation ("EFF") submitted an amicus curiae letter based on the original subpoenas (not the subpoenas as narrowed by the parties), asking the Court to deny issuance of the purportedly "overly broad" subpoenas to Bluehost, Twitter, Google, and YouTube. Because the parties have already met and conferred and narrowed the subpoenas identified by the EFF, the amicus curiae letter is moot as it essentially amounts to a request for an advisory opinion on an issue that has already been resolved. Had the EFF notified SCEA's counsel of its intent to submit the letter, counsel would have informed EFF of the modifications agreed to by the parties, thus obviating the purported need for the EFF to burden the Court with its unpermitted letter brief.

Indeed, the EFF has failed to seek leave from this Court to submit its letter, which it is required to do. In any event, should EFF now seek leave to submit its amicus curiae letter, such a request should be denied. Generally, an amicus brief should only be allowed when "a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case, or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide." Community Ass'n for Restoration of the Env't v. DeRuter Brothers Dairy, 54 F. Supp. 2d 974, 975 (E.D. Wa. 1999) (citing Northern Sec. Co. v. United States, 191 U.S. 555, 556 (1903)). None of these circumstances are present here. First, nothing in the record suggests that the parties lack competent representation. Second, as the EFF concedes, SCEA "may properly seek information to pursue the limited question of this Court's jurisdiction over Mr. Hotz." As discussed above, the subpoenas in question are in fact narrowly tailored toward jurisdictional discovery. Finally, the EFF has not shown that it possesses any information that may assist the Court that the parties' counsel cannot already provide. Accordingly, the EFF has failed to demonstrate that its amicus brief is warranted and its letter should not be considered by the Court.

Even if the Court was to reach the substance of the amicus curiae letter, the EFF's assertions are without merit. The proposed subpoenas agreed to by the parties do not implicate the "free speech" concerns suggested by the EFF. The third party subpoenas merely seek information regarding Mr. Hotz's transactions with entities based in California, as well as information regarding whether California residents accessed Mr. Hotz's web content and/or had interactions with Mr. Hotz. SCEA is entitled to this jurisdictional discovery.

1.The Third Party Subpoenas Are Narrowly Tailored For Jurisdictional Discovery And Proper Under Applicable Law

None of the authorities cited by the EFF justifies denying the issuance of the third party subpoenas sought by SCEA. Indeed, the legal standard set forth in the very case relied upon by EFF, Doe v., 713 F. Supp. 2d 1088 (W.D. Wa. 2001), makes clear that SCEA should be allowed to serve the subpoenas. Under Doe, a subpoena to a third party is proper when: "(1) the subpoena seeking the information was issued in good faith and not for any improper purpose,*fn3 (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish ...

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